McKenna v Deery

JurisdictionIreland
JudgeLynch J.
Judgment Date01 January 1998
Neutral Citation1998 WJSC-SC 9929
CourtSupreme Court
Docket Number[S.C. No. 316 of 1996]
Date01 January 1998

1998 WJSC-SC 9929

THE SUPREME COURT

Barrington J.,

Keane J.,

Lynch J.

Record No. 316 of 1996
McKENNA v. JUDGE DEERY & DPP

BETWEEN:

Colm McKenna
Applicant/Respondent

and

His Honour Judge Matthew Deery
Respondent

and

The Director of Public Prosecutions
Notice Party/Appellant

Citations:

COURTS OF JUSTICE ACT 1947 S16

RSC O.84 r26(2)

GAMING & LOTTERIES ACT 1956 S5

GAMING & LOTTERIES ACT 1956 S44

GAMING & LOTTERIES ACT 1956 S4(1)(c)

MURPHY V GREENE 1991 ILRM 404

O'DOWD V NORTH WESTERN HEALTH BOARD 1983 ILRM 186

DENTAL BOARD V O'CALLAGHAN 1969 IR 181

MCHALE V DEVALLY & DUBLIN CO COUNCIL UNREP LARDNER 20.5.1993 EX-TEMPORE

TOTE INVESTORS V SMOKER 1967 3 AER 242

R V ANDERSON 1985 2 AER 961

BENNETT V HORSEFERRY ROAD MAGISTRATES COURT 1993 3 AER 138

DUGGAN & ORS V AN TAOISEACH 1989 ILRM 710

WEBB V IRELAND 1988 IR 353

DPP V CORBETT 1992 ILRM 674

COURTS OF JUSTICE ACT 1936 S38(3)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

SUMMARY JURISDICTION ACT 1857 S2

SUMMARY JURISDICTION ACT 1857 S4

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51(1)

GAMING & LOTTERIES ACT 1956 S11

FINANCE ACT 1992 S120(2)(d)

Synopsis

Practice and Procedure

Case stated procedure; convictions for gaming affirmed in Circuit Court; High Court order to state case; whether Circuit Court judge obliged to state case under s.16 Courts of Justice Act, 1947; whether points of law in question arise on facts found by Circuit Court judge Held: Circuit court judge's discretion unqualified under s.16; superior courts should be slow to interfere; points moot on facts as found( Supreme Court: Lynch J. 11/12/1997)

McKenna v. Deery 1998] 1 IR 62

1

Lynch J. delivered the 11th day of December 1997 [NEM

2

This is an appeal by the Notice Party, The Director of Public Prosecutions (The DPP) against an order of the High Court (Morris J.) made on the 26th of March 1996 pursuant to a reserved judgment delivered by him on that date by which he granted " the relief sought". The " relief sought" included an order of certiorari quashing the Respondent's (whom I shall refer to as the Circuit Judge) order of the 29th November 1994 which had affirmed 6 convictions by the District Court of the 17th June 1994 of offences contrary to the Gaming and Lotteries Act 1956. The " relief sought" also included an order of mandamus commanding the Circuit Judge to state a case pursuant to Section 16 of the Courts of Justice Act 1947for the opinion of the Supreme Court on certain questions raised by the Applicant/Respondent (the Applicant).

3

The High Court order as made up does not mention certiorari or a quashing of the Circuit Judge's order but does make an order of mandamus commanding the Circuit Judge to state a case for the opinion of the Supreme Court. Because the Circuit Judge would be without any further power or function in the matter so long as his order affirming the convictions of the District Court stands I shall treat the formal order of the High Court as including an order of certiorari quashing the order of the Circuit Judge as well as an order of mandamus to state a case for the opinion of the Supreme Court.

4

No copy of the Circuit Judge's order of the 29th November 1994 was produced in the Supreme Court nor, it would appear, in the High Court either not withstanding the peremptory requirements of Order 84, Rule 26 (2) of the Rules of the Superior Courts. All that is with the Books of Appeal are copies of the District Court summonses numbering 6 in all in respect of which convictions were recorded by the District Court on the 17th June 1994 and affirmed by the Circuit Court on the 29th November 1994. From these summonses it appears that the Applicant was convicted of two offences on each of three dates namely the 18th October, 20th October and the 4th November 1993 the offences being:

5

1. Permitting to be used a building, to wit, McKenna's House of Cards, for the purpose of unlawful gaming, contrary to Section 5 Gaming and Lotteries Act 1956as amended and punishable under Section 44 of the said Act.

6

2. Providing facilities for unlawful gaming by means of slot (poker) machines contrary to Section 4(1) (c) Gaming and Lotteries Act 1956as amended and punishable under Section 44 of the said Act.

THE FACTS
7

The learned High Court Judge summarised the facts at pages 2 & 3 of his judgment as follows:

"The Applicant and his Company, McKenna Leisure Ltd., own and operate an amusement arcade at Main Street, Muff, Co. Donegal. Gaming is prohibited in Co. Donegal but the use of amusement machines is not prohibited. The Applicant, after consultation with representatives of Customs and Excise acquired 117 amusement machines and paid the appropriate duty and acquired an amusement machine licence for his premises for the years 1992/1993 and 1993/1994. The sums paid in respect of these years were respectively £13,800 and £13,600.

On the 8th November, 1993 (sic) Customs & Excise officials attended at the Applicant's premises and played the amusement machines. Shortly afterwards, 6 summonses were issued against the Applicant. They relate to three different dates, namely the 18th October 1993, the 20th October 1993 and the 4th November 1993 and it is alleged on each of these dates the Applicant used his building for the purpose of unlawful gaming and provided facilities for unlawful gaming.

These summonses came on for hearing on the 17th June 1994 in the District Court and the Applicant was convicted. He appealed these convictions to the Circuit Court and the matter came on for hearing before the Respondent on the 18th November 1994 at Letterkenny Circuit Court.

A description of these amusement machines is necessary. These machines take the form of a poker machine and to play the machine the player pits his skill against the machine. To play, he inserts £1 (sterling) and is allocated 50 points which he uses to wager against the machine. If he beats the machine then he adds to his count of points. If he loses all his points the game is over. He may during the course of the game insert further money and obtain a credit for further points.

If the player builds up a number of points and wishes to cash them in he is precluded under the rules of the arcade from obtaining a larger sum than the amount which he has inserted into the machine during the game. The prize therefore is the free use of the machine because all he can hope for is his money back. At the conclusion of his game, assuming he has points to cash in, he is required to go to the counter and fill in a form confirming the amount which he has put into the machine and indicating the amount which he wants refunded and he will then obtain a refund of that amount. The form which he is required to complete reads "I hereby request a refund of money from a money back video game, the refund I am requesting and receiving does not exceed the amount of money 1 have inserted into the machine during my last game."

The Proprietor of the arcade then checks the machine and makes the refund.

The evidence at the hearing indicated that the three (in fact two) Customs & Excise officials, having played the machines, sought to recover and were paid sums in excess of the amount which they had put into the machine during the last game and the learned Circuit Judge, the Respondent, held that this constituted gambling."

8

The Applicant engaged a stenographer to record the proceedings and accordingly a transcript of the proceedings was exhibited in the affidavit grounding the application and was available for the High Court and also for this Court. The Circuit Judge is recorded as giving judgment as follows:

"In essence, the prosecution evidence in the case came from two Customs & Excise officers, Ms. Divvers and Mr. Frank Murphy, and this evidence was to the effect that both of them played on the dates in question the machines at the premises, that they inserted £1 and that the machine recorded 50 points and that they played and got their points or credits to a higher number and that an approach was then made to the cashier and that they were paid money equivalent to the number of points or credits shown on the machine and that they thereby ended by playing at a profit. There was evidence from the two officers that they were not asked by the cashier how much money they had put into the machine. The Defence disputed this and referred in the evidence to records of dates and amounts that purported to indicate that the amount paid out was an amount equivalent to the amount paid in and that therefore that a player could not be in profit by playing the machines. The Defence inter alia is that the machines are for amusement only and I accept the evidence of the Customs & Excise to the effect that they were not asked how much they had put in and that the screen did not display it. In Section 42, subsection 20 (in error for Section 120, subsection (2)) of the Finance Act 1992in dealing with amusement machines the Act requires that for a machine to be classed as an amusement machine it is necessary that it affords the player no more than an opportunity to play for amusement without pay for so doing and the fact the these machines permitted the player to get money back in excess of that which he had inserted contravenes the Section and invites a description of other than amusement for these machines. I am satisfied that the activity being pursued at these premises constitutes gaming for a stake or stakes hazarded by the players and that they participated in the game either by skill or by chance and that it entitled them to prosper and in relation to the circumstances of the provision of payment for facilities afforded for games payment cannot be given for facilities provided if it enables the player to render a profit. The argument was put forward for the Defence that the player might not have been honest or did not...

To continue reading

Request your trial
6 cases
  • Flanagan v Judge Nolan
    • Ireland
    • High Court
    • 19 December 2014
    ...CRIMINAL JUSTICE ACT 1994 S38(1) JOHNSTON & CO v HOGG 1883 10 QBD 432 CONCISE OXFORD ENGLISH DICTIONARY 11ED 2006 MCKENNA v DEERY 1998 1 IR 62 1998/25/9929 CRIMINAL JUSTICE ACT 1994 S40 O'CONNOR v PRIVATE RESIDENTIAL TENANCIES BOARD UNREP HEDIGAN 25.6.2008 2008/48/10439 2008 IEHC 205 Admin......
  • Cathal Gallagher v Martin Casey, Bridget Diamond (as personal representatives of Henry Joe Diamond (Deceased)) and Josephine Riney
    • Ireland
    • High Court
    • 24 August 2005
    ...RIGHTS ACT 2003 S2 COURTS OF JUSTICE ACT 1947 S16 MCHALE v DEVALLY & DUBLIN CO COUNCIL UNREP LARDNER 20.5.1993 EX-TEMPORE MCKENNA v DEERY 1998 1 IR 62 SPORTS ARENA LTD v DEVALLY & DPP UNREP KINLEN 30.7.1998 1998/31/12368 COURTS OF JUSTICE ACT 1936 S38(8) COURTS OF JUSTICE ACT 1936 S38 DOLA......
  • ELG (a minor suing by her mother and next friend SG) v Health Service Executive
    • Ireland
    • Supreme Court
    • 20 December 2021
    ...only on application made by at least one of the parties to a matter pending before that judge: see the discussion in McKenna v. Deery [1998] 1 I.R. 62 below. Section 16 provides as follows: “A Circuit Judge may, if an application in that behalf is made by any party to any matter (other than......
  • Peng Ling v Circuit Judge Alison Lindsay and Another
    • Ireland
    • High Court
    • 15 May 2015
    ...matter pending the determination of such case stated." 22 Counsel for the applicant accepts that the Supreme Court in McKenna v. Deery [1998] 1 I.R. 62 acknowledged that the Superior Courts should be slow to interfere with the discretion of a Circuit Court judge to state a case. However, it......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT